Lance Armstrong Case: Due Process & Natural Justice in Self-Regulation
The production of evidence by USADA, against Lance Armstrong last week, saw the sport of cycling fall into further disrepute. Such evidence became available to the public, although its evaluation and probity would still need to be analysed and examined, before properly constituted forums. It is not the first time that an athlete is judged via the Media platform and certainly not the last where an athlete is presumed guilty.
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| Lance Armstrong |
In my previous posts I suggested that it is not my intention to judge Lance Armstrong. Nor do I have a desire to evaluate and examine the evidence here. It would be wrong and it would lead to further controversy which of course cannot be good for the parties involved. What I would like to ensure, however, is that people understand that my disagreement with USADA and consequently UCI, centres around the notions of fairness, due process and natural justice.
I have, in the past, represented several athletes in the same, if not worse, position as Lance Armstrong. Those who know my background, also know my strong position against doping in sport. Such position has repeatedly been stated with my research on criminalisation of doping in sport and my continuous advocacy for the introduction of criminal sanctions on those found guilty of anti-doping offences, before properly constituted courts.
As a lawyer, I am also aware that before any sanctions could be applied on an individual athlete, all procedures must be followed. Due process is not a negotiable subject, nor does it allow sporting governing bodies to exercise latitude in the way they apply their rules and their disciplinary procedures. To argue in a different way, would require us to ignore and, to a certain extent, fall foul of every notion of fairness in the application of well-established principles of law.
I must re-iterate the point that I am not interested in whether Lance Armstrong committed the alleged offences or not. I am interested in whether such offences could be properly examined before the appropriate and relevant forums and whether the evidence presented in support of the allegations could be efficiently and effectively analysed. If the probity of the evidence could suggest the guilt of Lance Armstrong, then it must be decided before a Panel of judges in the Court of Arbitration for Sport. Certainly not before cameras and microphones and in blogs around the world.
I stated my case very clearly and, based on the professional advice given in this matter, the findings were published last month here: http://e-comlaw.com/world-sports-law-report/article_template.asp?Contents=Yes&from=wslr&ID=1471. In this Report I concluded that:
"USADA, it is our opinion, has jurisdiction to investigate all
potential anti-doping violations, but only the ones that are within its
jurisdiction. USADA’s limitations, however, end with the issue of
investigation. This is also evident in the Code, which takes precedence over
USADA’s regulatory framework. Although the aim for all three stakeholders -
namely WADA, UCI and USADA - is the same, their roles and responsibilities are
different. The Code is clear on the issue and the specific provisions set out the
roles and responsibilities for national anti-doping organisations, without
ambiguity. In the absence of a direct delegation of jurisdiction by the UCI,
USADA’s powers are limited to, other than anti-doping controls, investigation
and prosecution of anti-doping violations. Nowhere in the Code and, for this
purpose, in the UCI Anti-Doping Rules and Constitution, does it state that
national anti-doping organisations could have jurisdiction to apply sanctions
on athletes with an international dimension and on offences that could have
taken place on foreign soil and under the auspices of an international
governing body. If national Anti-Doping organisations had such
powers in relation to sanctions, the role of international governing bodies
would have been made redundant and it would have caused procedural chaos. This
is not what the regulators intended to create, nor could it be said that all
relevant stakeholders desire the effects of such travesty of procedure. "
It follows, therefore, that procedure has not been followed in the Lance Armstrong case. Some people may take the view that the evidence is so overwhelming that we do not need to follow procedure. I am afraid, I disagree. The essence of a law abiding society is adherence to the rule of law. For without it there can be no order and justice. It may be the case that horrific incidents have brought the sport into disrepute and the alleged offender must be punished. Those who believe in the law cannot take a different view. But punishment must fit the crime and it must be delivered in a fair and just manner.
Finally, many will take the view that sport is different and, therefore, strict adherence to procedures need not be followed in disciplinary matters. Again, I would have to respectfully disagree. The basis of sporting disciplinary procedures forms the cornerstone of the very existence of sporting regulations and creates the balance between the accuser and the accused. In every civilised society the accused is afforded the ordinary rights and sport is not different, as CAS has repeatedly stated in its jurisprudence.
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| Court of Arbitration for Sport |
Consequently, I disagree with the way USADA handled the matter, but not as much as I disagree with UCI for allowing USADA to enforce an authority it does not have. I would, therefore, conclude in the same way I concluded my Report above:
"...as the Code clearly empowers USADA to
co-operate with national and international governing bodies, the correct
approach would have been for USADA to work closely with the UCI on all aspects
regarding the matter against Mr Armstrong and allow the UCI to apply sanctions
in the situation where the allegations are proven. If USADA does not have faith
in the way the UCI handles its affairs, USADA could always have the opportunity
- with the assistance of WADA - to appeal any decision re-entered by UCI to
CAS. This, we argue, is the essence of the
rules currently in place and the intention of the regulators responsible for
the sport. The case of Mr Armstrong poses a unique opportunity for all
stakeholders to clearly define their roles and responsibilities and ensure that
their ‘fight against doping’ does not create innocent victims and other forms
of ‘collateral damage’."
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